People For the American Way Foundation

Who Is Weaponizing Religious Liberty?

It Takes a Right-Wing Village to Turn a Cherished American Principle Into a Destructive Culture-War Weapon

In 2016, for the second year in a row, more than 100 anti-equality bills targeting LGBT people were introduced in state legislatures, many of them described as measures to protect religious liberty. This flood of anti-LGBT and “religious liberty” legislation is not the result of isolated local efforts. It is part of a larger campaign by Religious Right groups to resist and reverse advances toward equality for LGBT Americans by portraying equality as inherently incompatible with religious freedom. That effort began well before the U.S. Supreme Court’s 2015 marriage equality ruling, but it has kicked into overdrive since.

Religious Right organizations have long equated criticism with persecution, and portrayed legal and political defeats as attacks on Christianity and religious freedom. Efforts to frame opposition to reproductive choice and LGBT equality as religious liberty issues picked up steam with the issuing of the Manhattan Declaration in 2009. This manifesto, co-authored by right-wing Catholic intellectual Robert George, pledged that its signers would refuse to “bend” to “any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.” Since then, Religious Right groups, their allies at the U.S. Conference of Catholic Bishops, and allied politicians have increasingly framed their opposition to marriage equality, nondiscrimination laws, reproductive choice, and the contraception coverage requirement under the Affordable Care Act as questions of religious liberty.

Included in the recent anti-equality wave are various types of legislation, including state-level Religious Freedom Restoration Acts (RFRAs), modeled to different degrees on the federal law of the same name; so-called Government Nondiscrimination Acts (GNDAs), which do away with the federal RFRA’s balancing tests to give special legal protection to discrimination based on anti-equality religious beliefs; and anti-LGBT laws that don’t explicitly fly under the religious liberty banner, like bills barring transgender people from using the public bathrooms appropriate for their gender identity.

Some of those bills have been defeated, thanks to mobilization by equality advocates and their allies in progressive, religious, and business communities. Others have been approved by state legislatures but vetoed by governors, including Republican Gov. Nathan Deal of Georgia and Democratic Gov. Terry McAuliffe of Virginia. Still others have been signed into law, including Mississippi’s “religious liberty” law and North Carolina’s now notorious HB2, a law overturning local nondiscrimination ordinances and banning transgender people from using public restrooms that match their gender identity. Inflammatory rhetoric about transgender people has fed an increasingly ugly climate in which states and localities are literally making it a crime for a transgender person to go to the bathroom.

This network of anti-equality groups is engaged in a high-stakes effort to convince Americans that preserving religious liberty requires giving individuals and corporations the power to disobey laws that promote the common good and protect other constitutional principles like equal treatment under the law.

Together these organizations constitute a powerful cultural and political force that will not disappear after a few losses in the courtroom or at the ballot box. Indeed, in the wake of their marriage equality defeat at the U.S. Supreme Court in 2015, they have redoubled their efforts. They are eagerly creating folk heroes out of public officials and business owners who refuse to provide services to same-sex couples. And they are pushing Republican officials to enact legislation at federal as well as state levels that would further weaponizereligious liberty, turning it from a shield meant to protect individual religious practice into a sword to be wielded against individuals and groups disfavored by Religious Right leaders.

Some of the key players in the current movement to turn religious liberty from a universally cherished American ideal into a weapon of discrimination:

In an urgent email in December, FRC warned its supporters that “sexual radicals” have “declared war on your values. Your family. Your religious beliefs and freedom.” FRC has publicly taken credit for so-called state Government Nondiscrimination Laws that it says meet “the need for comprehensive state legislation that protects businesses, public employees, private employees, religious and secular nonprofits from the waves of politically correct attacks.”

FRC has created model legislation that would accomplish exactly that: a “Government Nondiscrimination Act” that can be customized to every state. After the Supreme Court’s ruling this summer, the pressure to approve of same-sex marriage is bearing down on every Christian. The Government Nondiscrimination Act would bar state governments from penalizing individuals and entities for their moral or religious beliefs that marriage is the union of one man and one woman.

In FRC’s words, the Government Nondiscrimination Act “prohibits the state government from penalizing individuals and entities for their moral or religious beliefs that marriage is the union of one man and one woman” while also protecting “individuals and entities who believe that sexual relationships are properly reserved for such marriages” and those who believe “that ‘man’ and ‘woman’ are biologically based.”

The Government Nondiscrimination Act is focused on preventing government discrimination. Our government should never discriminate against, punish, or penalize people based on their sincerely held belief that marriage is the union of one man and one woman. Like the First Amendment Defense Act at the federal level, states need to pass legislation now to protect individuals and entities from state discrimination on the basis of their beliefs in natural marriage.

FRC has backed versions of GNDA introduced at the state level. See, for example, a February action alert regarding Government Nondiscrimination Act legislation in South Dakota. FRC President Tony Perkins said Mississippi’s recent legislation “should be a model for every state.” The Mississippi law does not protect religious liberty in general, but it says government cannot punish business owners for actions based on a specific set of religious or moral beliefs: that marriage is between a man and a woman; that sex is OK only in the context of such a marriage; and that gender is fixed at birth. FRC Action said that the Mississippi law “essentially reaffirmed the First Amendment” and claimed that LGBT activists are upset because the law provides “a level playing field” when what they want is “forced acceptance.”

FRC bragged that an April 25 rally defending North Carolina’s law was organized in part by “one of FRC’s Watchmen Pastors.” FRC has circulated petitions targeting “bathroom bullies” and “big business bullies.”

Perkins and FRC Senior Vice President Rob Schwarzwalder both criticized the U.S. Department of Justice for filing suit against North Carolina over its bathroom ban, with Schwarzwalder calling it “essentially fascistic” and Perkins demanding that Republicans in Congress “bring the imperial White House under control.”

FRC reported a 2013 income of $14.6 million, with an additional $2.6 million for FRC Action.

Heritage Foundation and Heritage Action.

The Heritage Foundation and its political arm, Heritage Action, are a massive presence in the right-wing movement, with a combined income in 2013 of more than $120 million. A major force in the marketing of right-wing policy ideas since the Reagan administration, Heritage has in recent years increasingly used its muscle to push Republican lawmakers to adhere to the group’s demands for ideological purity. To get an idea just how far to the right Heritage is attempting to push the GOP, consider that the current Republican House member gets on average only a 63 percent score on Heritage Action’s scorecard; Republican senators currently average just 61 percent.

A recent email message from Heritage Action began by declaring, “Religious freedom is under attack in our country.” The email encourages conservative activists to demand that Republican members of the House of Representatives pass the so-called First Amendment Defense Act, a federal version of the state Government Nondiscrimination Acts.

Heritage is home to Ryan Anderson, a protégé of Manhattan Declaration author and National Organization for Marriage co-founder Robert George. Anderson has become one of the most energetic and visible opponents of marriage equality and nondiscrimination protections for LGBT people and same-sex couples. After the Supreme Court’s marriage equality ruling, Anderson rushed out a book promoting a long-term campaign plan for opponents of marriage equality. It includes these steps:

Identify the Court’s decision as illegitimate judicial activism.

Act to protect the rights of “conscience.”

Wage a long-term campaign of “rebuilding a truthful, strong marriage culture” to “bear witness to the truth” within a culture that has been told a lie, in this case about the nature of marriage. This will be a long-term, “generational” effort, “something our children and grandchildren will be responding to.”

The Religious Right and its allies, including Republican presidential candidates, have seemingly embraced Anderson’s game plan. They have repeatedly denounced the Supreme Court ruling as illegitimate.

And, of course, the Religious Right is aggressively promoting the effort to give anti-LGBT discrimination special legal protection in the name of protecting religious liberty and freedom of conscience. Anderson slammed Georgia Gov. Nathan Deal for having “caved to pressure” from the business community when he vetoed the so-called Free Exercise Protection Act, a version of the Religious Right’s protection-for-discrimination bills. Heritage is urging North Carolina legislators to defend their “bathroom privacy law” from the intense criticism it has generated. Heritage has also criticized North Carolina’s Gov. Pat McCrory for an executive order giving state employees protection against discrimination on the basis of sexual orientation and gender identity.

Roger Severino, director of Heritage’s DeVos Center for Religion and Civil Society, slammed the U.S. Department of Justice’s lawsuit against North Carolina over HB2 as politics, “raw ideology,” and abuse of power:

These developments prove that same-sex marriage was merely the start, not end, of the left’s LGBT agenda. The radical left is using government power to coerce everyone, including children, into pledging allegiance to a radical new gender ideology over and above their right to privacy, safety, and religious freedom.

In November, Anderson took a break from his anti-marriage-equality work to attack the proposed federal Equality Act, which would add sexual orientation and gender identity to federal civil rights protections. Anderson said it “unnecessarily and unjustly violates freedom by creating special privileges based on sexual orientation and gender identity.”

Heritage is a sponsor of the annual Values Voter Summit, the Religious Right’s largest political gathering, at which Heritage has frequently tried to discredit libertarians by arguingthat it is impossible to be a real fiscal conservative without embracing the Religious Right’s views on the “traditional family.”

National Organization for Marriage

The National Organization for Marriage has been shrinking since its heyday a few years ago when it was pushing anti-equality laws and constitutional amendments around the country. But NOM and its president, Brian Brown, are still a visible presence backing anti-gay “religious liberty” legislation.

Brown disparages supporters of LGBT equality as “extremists who believe that religious liberty must be eliminated when it comes to the gay agenda.” NOM cheered Mississippi Gov. Phil Bryant’s signature on that state’s law as a “huge victory” over “LGBT extremists who want to marginalize and punish Christians and other people of faith simply for professing the truth of marriage as God designed it, one man and one woman.” NOM called North Carolina’s law a “tremendous victory” and disparaged governors who have rejected such legislation as “gutless.”

These lawmakers have sided with LGBT extremists and voted against the right of Missouri voters to consider needed religious liberty provisions protecting people of faith from being forced to participate in a same-sex “wedding” despite their deeply held religious objections. As we have done elsewhere, we will do everything in our power to end the political careers of these gutless politicians.

Brown also uses right-wing terminology to trivialize the interests of transgender Americans by saying that “gender ideology” would “allow men to force their way into intimate facilities reserved for girls and women, including showers and restrooms, simply by claiming they ‘identify’ as women.”

Brown has joined a global war being waged against the lives and rights of LGBT people, teaming up with anti-marriage-equality activists in France and traveling to Russia to support anti-gay legislation there. Brown will be joining other anti-gay activists at this year’s World Congress of Families summit in the Republic of Georgia. At last year’s World Congress of Families, Brown said the Supreme Court’s marriage equality ruling had “put a lie into the law” and told activists, “God has put us here for some reason. This fight is not over. It has just begun.”

Alliance Defending Freedom

The Alliance Defending Freedom, formerly known as the Alliance Defense Fund, is the largest Religious Right legal organization, which Think Progress has called “the 800-pound gorilla of the Christian Right.” ADF provides the anti-gay movement with legal muscle through its fundraising prowess (it reported $44 million in income in 2013), staff, and network of thousands of volunteer attorneys. ADF has been spreading its anti-choice and anti-equality influence internationally while playing a major role in the resistance to LGBT equality in the U.S.

In 2014, ADF manufactured a controversy by claiming that the owners of a commercial wedding chapel in Idaho, who had previously conducted Christian, other religious, and nonreligious ceremonies and weddings, were about to be thrown in jail for refusing to marry gay couples. As noted in People For the American Way’s “Religious Liberty: Sword or Shield” report, “The supposed threat to religious freedom evaporated under closer scrutiny — the owners had never been ordered to conduct weddings for same-sex couples, and had reincorporated as a religious corporation that was not even subject to the law they were complaining about.”

ADF’s Greg Scott praised the raft of so-called religious liberty bills at the state level this year, saying, “Lawmakers have stepped up to shore up freedoms we have always had as Americans, because they understand those freedoms are at risk.”

ADF praised Mississippi Gov. Phil Bryant for signing the state’s new religious liberty law, which grants legal exemptions to people who have religious beliefs about marriage, nonmarital sex, and gender. ADF called the legislation a “commonsense bill” that “affirms the freedom of all people to peacefully live and work according to their deeply held beliefs.” Its headline touted the law’s protection of Mississippians’ freedom to “live and let live.”

“We commend the governor for signing into law protections for schools, churches, businesses, and public employees so that they won’t face government discrimination,” said ADF Legal Counsel Kellie Fiedorek. “After all, you’re not free if your beliefs are confined to your mind. What makes America unique is our freedom to peacefully live out those beliefs, and the Constitution protects that freedom.”

Mother Jones recently reported that ADF “appears to be particularly influential when it comes to putting bathroom bills on the agenda,” affirming earlier reporting by Media Matters. ADF promotes model anti-transgender “Student Physical Privacy” policies to school districts and offers free legal representation to any school district that faces a legal challenge for blocking transgender students from bathrooms. It also promotes model legislation whose language has shown up in bills in Kansas, North Carolina, Nevada, Minnesota, and Texas. The Family Policy Alliance, the political arm of Focus on the Family, said in a press release about Mississippi’s new law that their “friends at Alliance Defending Freedom wrote model legislation for the bill.”

In 2007, ADF attorney Mike Johnson said the group would oppose the Employment Non-Discrimination Act (ENDA), the proposed federal law that would ban discrimination in employment based on LGBT status, even with broad religious exemptions, calling the bill an “effort to silence people of faith” and an attack on free speech, religious liberty, and freedom of conscience. ADF President Alan Sears called ENDA “a dangerous, blatantly unconstitutional bill that would pit the government directly against the free exercise of religion.”

Sears co-authored the 2003 book “The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today.” In it he professes compassion for those who are “ensnared” in the “deadly grip” of “homosexual behavior” while portraying the gay-rights movement as an enemy of religious freedom. The book warned that hate crime laws would lead to the censoring of churches and opposed a law against anti-gay discrimination in the workplace, even with religious exemptions. It said that Christians who support or are ambivalent about such legislation are “signing a death warrant for religious liberty.”

Liberty Counsel

Liberty Counsel is a Religious Right legal group run by Mat Staver, former dean of Liberty University’s law school, and his wife, Anita. Anita recently announced that she would start carrying her Glock .45 into the bathroom in response to Target saying it would not discriminate against transgender customers. Liberty Counsel is also the former home of Matt Barber, the viciously anti-gay pundit who now runs a right-wing propaganda site, BarbWire. Mat Staver once compared pro-equality Republicans and those who don’t share social conservatives’ priorities to cockroaches.

CBS News reported recently that Liberty Counsel-affiliated attorneys in all 50 states are “advising lawmakers and defending clients in what they believe to be the great cultural clash of our time.” Staver is also defending Alabama Chief Justice Roy Moore against ethical complaints over his push to get other Alabama officials to essentially nullify federal court rulings on marriage equality.

Liberty Counsel has represented Rowan County, Kentucky, clerk Kim Davis, who refused to allow her staff to process marriage license applications after the Supreme Court’s marriage equality ruling, and the group actively promotes legislation that would give special legal rights to business owners and others who discriminate against LGBT people and same-sex couples on purported religious liberty grounds. Liberty Counsel recently worked with other anti-gay activists to devise a policy meant to make it impossible for a Gay-Straight Alliance club to function in a Tennessee high school.

In April, Liberty Counsel offered to defend Missouri’s Religious Freedom bill (SJR 39) if it became law; the bill died in a House committee after passing the Senate over a heroic filibuster by the chamber’s outnumbered Democrats. Staver praised the “Pastor Protection Act” signed by Florida Gov. Rick Scott in March, while calling for broader legislation to empower others to resist the “LGBT agenda.” Said Staver, “This assault on marriage is really an attempt to obliterate Judeo-Christian morality, to destroy marriage and family, and is an attack on God who created male and female.” Also in March, Liberty Counsel asked a federal court for permission to intervene in a lawsuit brought by the ACLU against a North Carolina law that allows magistrates to refuse to grant marriage licenses to same-sex couples.

Liberty Counsel hosts an annual gathering for Religious Right political activists called the Awakening. Threats to religious liberty from the LGBT rights movement were a major theme at this year’s conference, at which FRC Vice President Jerry Boykin said, “But I will tell you what, the first man that walks in my daughter’s bathroom, he ain’t going to have to worry about surgery. That’s not right. That is not right. It’s not right. It’s ungodly. But it’s also just unnatural. This is crazy. Where are the Christians that are standing up?”

The American Family Association is one of the oldest and largest Religious Right groups, reporting income of more than $28 million in 2013. The AFA owns a radio network, which is currently pushing people to cancel their PayPal accounts over the company’s dissent from North Carolina’s anti-LGBT law, and the OneNewsNow online “news” service. It also cosponsors Family Research Council’s annual Values Voter Summit. When asked why there has been so much criticism of North Carolina’s recent bathroom-and-nondiscrimination ban, the group’s national field director blamed Satan.

Bryan Fischer, who no longer has the title of spokesperson for the group but still has the platform of a show on its radio network, is among the most vehemently anti-gay (as well as anti-Muslim) figures in right-wing media. He recently declared that Martin Luther King, Jr. would be “ecstatic” with Mississippi’s new law protecting anti-LGBT discrimination. (AFA spokesperson Buddy Smith called the law a “freedom of conscience bill.”) Fischer said Tennessee’s Republican Gov. Bill Haslam was “doing the devil’s work” when he vetoed legislation to make the Bible the state’s official book. Fischer is fond of declaring that those who disagree with him, including evangelicals who supported Donald Trump over Ted Cruz, are empowering demonic forces.

Another AFA radio host, Sandy Rios, recently criticized state officials who responded to anti-gay legislation in North Carolina and Mississippi by curtailing official travel to those states; she said the LGBT equality movement is a “fascist movement in our country, and the fascism is against people who have, primarily, Christian values.”

The AFA, which has a long record of launching boycotts against companies that it believes are taking the side of pro-gay forces in the culture war, is leading an attack on Target after the company announced that it would not discriminate against transgender people using its bathrooms.

The Becket Fund, dubbed “God’s Rottweilers” in a 2014 Politico story, is a $5 million law firm that focuses on religious liberty issues. Unlike some other Religious Right legal groups, Becket does invest resources protecting the rights of religious minorities, like a Muslim prisoner who petitioned for the right to grow a beard.

But Becket is also a big player in the religious liberty litigation culture wars. Becket’s board includes the Family Research Council’s Kenneth Blackwell, Religious Right mega-funder Sean Fieler, and Robert George, an architect of the Religious Right’s “religious liberty” strategy. Back in 2007, a Becket attorney warned that marriage equality would lead to “widespread legal confusion resulting in pervasive church-state conflict and a substantial chilling of religious expression.”

A Becket Fund attorney appeared in Rick Santorum’s 2014 movie about the “persecution” of American Christians. In 2014, Becket praised a ruling by the Supreme Court’s conservative justices on prayer at government meetings that narrowly defined what would amount to unconstitutional religious coercion.

Becket represented Hobby Lobby, the arts and crafts company whose challenge to the contraceptive coverage requirement under the Affordable Care Act won a first-ever ruling from the Supreme Court’s conservative justices that for-profit corporations can make “religious exercise” claims under the federal Religious Freedom Restoration Act. Becket argues that business owners are no less deserving of religious accommodation than churches or religiously affiliated nonprofits.

Becket has also represented a handful of religious institutions challenging the contraception mandate under the Affordable Care Act, and attacking the Obama administration’s accommodation for those with religious objections. Becket clients argue that even informing the government of their objections is a substantial burden on their religious liberty because that act would trigger the accommodation mechanism that would provide women with contraceptive coverage through other means. Becket accuses the Obama administration of working to push people of faith “to the margins.”

The Becket Fund urged the Supreme Court to uphold both California’s Prop 8 and the federal Defense of Marriage Act. In 2008, Becket ran a full-page ad in the New York Times charging that anti-Prop 8 protesters were “thugs” engaged in a “religious war” of violence and intimidation against the Mormon church; founder Kevin “Seamus” Hasson responded to criticism with a comparison of “radical secularist” Prop 8 protestors to Al-Qaeda and other “radical Islamist” perpetrators of violence.

Becket’s former general counsel Kyle Duncan, who served as lead counsel for Hobby Lobby’s owners in their challenge to the contraception coverage requirement under the Affordable Care Act, was a member of Marco Rubio’s “religious liberty advisory board” during his 2016 presidential campaign.

The American Principles Project

The American Principles Project, founded by anti-equality strategist Robert George and funded by board chair Sean Fieler, promotes the Religious Right’s anti-LGBT religious liberty strategy. APP joined with Heritage Action for America and FRC Action to pushpresidential candidates to sign a pledge that they would advocate for passage of the federal First Amendment Defense Act (FADA) and sign it into law during their first 100 days as president. The pledge was signed by Ted Cruz, Marco Rubio, Ben Carson, and Carly Fiorina; Jeb Bush and Donald Trump did not sign but publicly expressed support for FADA. Back in February, APP argued that Cruz’s victory in the Iowa caucus demonstrated that Trump was being hurt by not following Cruz’s lead in making religious liberty a campaign priority.

APP also promotes state-level religious liberty legislation. Senior Fellow Jane Robbins disparaged Georgia Gov. Nathan Deal’s recent veto of “religious freedom” legislation as a “shameful appeasement of leftist totalitarian interests.” She said the battle is not over: “Georgians of faith will be back — this year, next year, as long as it takes — until we secure protection of our God-given liberties.”

Executive Director Terry Schilling, like Catholics for Cruz member Robert George, recently argued that allowing transgender people to use bathrooms appropriate to their gender identity is part of a “war on women” being waged by “the American left.” Maggie Gallagher, former head of the National Organization for Marriage, is also an APP senior fellow.

Conclusion

The groups reviewed in this report represent the tip of the iceberg of a much larger movement that is trying to eliminate legal access to abortion and roll back legal protections for LGBT people, couples, and families — and trying to do so in the name of religious liberty. Anti-equality and anti-choice forces have made religious liberty their rallying cry precisely because genuine religious liberty is such a broadly cherished American ideal. Their mixed success with this religious liberty strategy may help explain why Religious Right groups are now expending so much effort on “bathroom” issues, portraying equality for transgender people as an open door to child molestation, the same way that the anti-marriage equality movement portrayed same-sex couples as malevolent threats to children for so many years. The defeat of Houston’s equal rights ordinance last year was a victory for this ugly fearmongering strategy, and so we are seeing that strategy multiplied — and sometimes connected explicitly to religious liberty rhetoric.

Where the Religious Right has made progress, it has done so thanks largely to Republican politicians who share their agenda or are afraid of being targeted by Religious Right voters. Fortunately, growing support for LGBT equality among Republicans as well as Democrats, and among religious and business leaders, is helping to limit the success of the Religious Right’s determined efforts to pit religious liberty against other constitutional principles.